Falling Like a House of Cards: Resisting Arrest Dismissed as a Result of Legally Insufficient Claims of Disorderly Conduct

One of the more common ways the police and prosecutors can amplify an otherwise insignificant event is by alleging, and ultimately arresting a person for, Resisting Arrest (New York Penal Law 205.30) or Obstructing Governmental Administration in the Second Degree (New York Penal Law 195.05). That is not to say that these crimes are not legitimate offenses and prosecutions are not warranted, but that the conduct for which a person is accused may not based on sound law. To be clear, an arrest for NY PL 205.30, for example, can be established with an accused merely pushing away and refusing to place his or her hands where they can be handcuffed. Despite what an “average” person may believe, to commit Resisting Arrest, one need not become violent or cause injury to an officer. However, before the crime of Resisting Arrest can happen, the reason for that arrest must be lawful. Simply, you cannot be convicted of Resisting Arrest if your underlying conduct is lawful. It is black letter law that “[i]f force is necessary to prevent an unlawful arrest, then force may be employed…” See People v. Cherry, 307 NY 308, 311, (1954) (Having said that, one should not violently or physically oppose the police because one believes one’s conduct is lawful. The courts, not the accused or the police, ultimately make the decision as to the legality of an arrest).

Although I have written on this topic multiple times (a search for “Resisting Arrest,” “205.30” and following the link above will reveal more content), a recent decision once again affirms the above rule. In People v. Coley 2013 NY Slip Op 50167 – NY: County Court, Criminal Court 2013, the defendant was accused of Disorderly Conduct in violation of New York Penal Law 240.20 by standing “in the middle of the above location, a public sidewalk, impeding the flow of pedestrian traffic.” After attempting to issue the defendant a summons for his failure to leave the location, the defendant could not produce any identification. The police attempted to handcuff the defendant who “flailed his arms and twisted his body.”

In attacking the misdemeanor criminal charges of NY PL 205.30 and NY PL 195.05, the accused first moved to dismiss the basis of these crimes. Remember, if the Disorderly Conduct falls, the entire criminal case will join it like a house of cards. Here, the argument for dismissal stemmed from the fact that the allegations merely made in a conlusory manner. Instead of stating how the defendant impeded the flow of traffic, what people had to do to avoid him or how vehicles maneuvered, the complaint simply made a conclusion.

As the court recognized:

“Here, as to the allegations brought under subdivision (5), ‘something more than a mere inconvenience of pedestrians is required to support the charge.’ See, People v. Jones, 9 NY3d 259, 262, 848 NYS2d 600 (2007), citing People v. Cancel, 3 NY2d 327, 331, 165 NYS2d 113 (1957). ‘Otherwise, any person who happens to stop on a sidewalk — whether to greet another, to seek directions, or simply to regain one’s bearings — would be subject to prosecution’ for disorderly conduct. 9 NY3d at 262. See, also, People v. Reed, 19 Misc 3d 217, 219, 851 NYS2d 331 (Crim Ct, Kings Cty, 2008).”

“The temporary inconvenience of pedestrians being required to walk around defendant and the apprehended others, without more, is insufficient to sustain the charge. See, People v. Pearl, 66 Misc 2d 502, 502-503, 321 NYS2d 986 (App Term, 1st Dept, 1971).”

Because the Disorderly Conduct was not facially sufficient, there was no need for the court to examine the charges of PL 205.30 or PL 195.05. After all, without a valid arrest, there can be no resisting.

To educate yourself about any of the crimes or violations listed above, follow the respective links, review the NewYorkCriminalLawyerBlog.Com or go directly to New-York-Lawyers.org. All of these resources collectively have information on New York’s Penal and Criminal Code as well as the review of legal decisions and cases.

Started by two former Manhattan prosecutors, the New York criminal lawyers at Saland Law PC represent clients from investigation and arrest through hearing and trial in the criminal courts of New York City and the surrounding suburban region.

Contact Information